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Friday, May 30, 2008

CAAF issued two divided opinions today. In United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. May 30, 2008), Judge Ryan wrote for a four-judge majority holding that the military judge violated the Sixth Amendment by ordering the courtroom cleared while the 11-year-old alleged victim testified without making the findings necessary to warrant closing the proceedings to the public. Judge Stucky dissented.

In United States v. Melson, __ M.J. ___, 08-5003/AF (C.A.A.F. May 30, 2008), Judge Erdmann wrote for a three-judge majority holding that the Air Force Court erred by finding IAC without first obtaining and considering a declaration from the trial defense counsel. (Appellate government counsel offered such an affidavit in a reconsideration petition after AFCCA ruled; AFCCA declined to receive it.) Judge Stucky, joined by Judge Ryan, dissented. Melson couldn't be more inside baseball unless it had been argued at a Project Outreach in Cooperstown. That said, I find it fascinating and will explore it further over the weekend. The almost certain upshot of the opinion will be bifurcated litigation of IAC claims, contrary to appellate courts' normal abhorrence of "piecemeal litigation."

3 comments:

What is happening in Melson? Are we now going to resolve factual disputes through the use of affidavits? What is the reluctance to use a DuBay hearing to develop facts?

Affidavits may be more expedient, but there is no sustainable argument that they are more accurate than a DuBay hearing. The basis for Ginn, and DuBay, was to do away with post-trial factual determinations being based on competing affidavits.

This is not a good road upon which the CAAF is traveling. Now CCAs are to evaluate affidavits from appellants and TCD and determine which is more believable. This must be done in a post-trial hearing presided over by a MJ. Battling affidavits is not the answer. Also, contest ≠ rebut.

And in Ortiz, CAAF reverses another sex offender case - 3 in one month. Don't worry CAAFlog, no mention here of CAAF being soft on sex offenders. I just want to encourage military trial judges to be less cavalier in their rulings -especially on member selection and any issue involving a constitutional right. Close cases on these issues need to be well-documented with findings of fact and conclusions of law. Or rule in favor of the defense and protect the record. These 3 reversals were lazy trial judge errors that didn't need to be.

The majority is cheating. The rule they announce is both practical and efficient, and the majority urges the best practices. It is an odd place for the Government to be to begin coordinating with the trial defense attorney at such an early stage of the appeal. It does seem to defy common sense to make a determination of IAC without such a crucial perspective.

But who is to blame for that lack of "evidence"? Surely not the court, nor the defense. So the reasoning set forth in the dissent is legally sound, and tighter.

I just think the majority has more experience with the big picture of appellate practices and their preferences are reflected in a case like this.